The Role of “Cost” Consideration in Regulatory Proceedings

By F. William Brownell & Andrew D. Knudsen on May 7, 2019

In Michigan v. EPA, 135 S. Ct. 2699 (2015), the Supreme Court held that the cost of regulation is an essential factor that EPA must consider when deciding whether to regulate. Id. at 2707. According to the Court, “[a]gencies have long treated cost as a centrally relevant factor when deciding whether to regulate.” In subsequent regulatory proceedings, however, EPA has offered different views as to what Michigan’s cost mandate means. At the end of the…

The Nickel Report

The Time Has Come to Overrule Auer

By F. William Brownell & Henry V. Nickel on January 22, 2019

According to the dictionary, a phrase is “ambiguous” if it has more than one meaning. Chevron[1] is frequently cited for the proposition that the presence of “ambiguity” gives an agency the authority to interpret the statute to eliminate the ambiguity. A better view of Chevron is that only the Courts may resolve statutory ambiguity through interpretation. When faced with statutory terms that may be given more than one meaning, courts must determine, applying canons…

The Nickel Report

NSR Reform — EPA’s ACE Proposal

By F. William Brownell on September 6, 2018

Our regulatory state is founded on the principle that regulated parties must have notice of their compliance obligations. Laws or regulations that fail to give fair notice violate due process and cannot give rise to liability. See, e.g., Gen. Elec. Co. v. EPA, 53 F.3d 1324 (D.C. Cir. 1995). A notoriously unclear regulatory program addresses circumstances under which an existing facility triggers the Clean Air Act’s (CAA) “new source review” (NSR) program and its associated…

The Nickel Report

From Judge to Justice: What Brett Kavanaugh’s Supreme Court Nomination Could Mean for Environmental Jurisprudence

By F. William Brownell, Alexandra Hamilton & Jean Fundakowski on July 16, 2018

On July 9, President Trump announced Judge Brett Kavanaugh of the Court of Appeals for the DC Circuit as his nominee to replace retiring Justice Anthony Kennedy on the Supreme Court. Kavanaugh has developed an extensive history of jurisprudence during his twelve-year tenure on the DC Circuit. And, given the DC Circuit’s heavy administrative law caseload, Kavanaugh has authored numerous opinions involving environmental law. The upcoming confirmation process is sure to include a focus on…

F. William Brownell

The Role of “Cost” Consideration in Regulatory Proceedings

The Time Has Come to Overrule Auer

NSR Reform — EPA’s ACE Proposal

From Judge to Justice: What Brett Kavanaugh’s Supreme Court Nomination Could Mean for Environmental Jurisprudence

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